What’s Different?

As the Supreme Court prepares to take up one of the persistent “I won’t bake a cake for ‘those people'” cases, a friend asked me to explain the difference between a merchant who refused to do business with a Neo-Nazi group and one who refused to serve gays or Jews.

It’s an important distinction, but not an immediately intuitive one.

Civil rights laws were initially a response to businesses that refused to serve African-Americans–many of the proprietors claimed that their religious beliefs prohibited “mixing” the races (much as those refusing service to LGBTQ folks today base that refusal on religious teachings). Those civil rights measures–later expanded to protect other groups– were based upon an important principle that undergirds our legal system.

Our system is based upon the premise that your right to be treated like everyone else depends upon your behavior, not your identity.

As a result of that important distinction, I can post a sign saying “No shirt, no shoes, no service.” I cannot post a sign saying “No blacks, no Jews.” I can “discriminate” between customers behaving properly, and those who are disruptive, are unwilling to pay, or are otherwise exhibiting behaviors that I believe are harmful to my ability to ply my trade.

I cannot discriminate based upon my customers’ race, religion, or–in states that have inclusive civil rights law–sexual orientation or gender identity.

The confusion between a merchant’s unwillingness to have her business associated with the KKK, for example, and unwillingness to serve LGBTQ customers is reminiscent of arguments raised when Indiana was (unsuccessfully) trying to add “four words and a comma”(sexual orientation, gender identity) to Indiana’s civil rights law, which still does not include protections for gays or transgender individuals.

During those arguments, opponents of the added protections asserted that “forcing” a business to serve gay customers would be indistinguishable from forcing a baker to make a cake with a swastika or forcing Muslim or Kosher butchers to sell pork.

That comparison, however, is fatally flawed.

If I go into a menswear shop and ask for a dress, am I being discriminated against when I’m informed the store doesn’t sell women’s clothes? Of course not.

Civil rights protections don’t require the baker who doesn’t bake swastika cakes, or the butcher who never sells pork to add those items to their inventory. Civil rights laws do keep the baker from refusing to sell the cakes he does make to “certain people.”

The kosher butcher doesn’t have to carry pork, but he can’t refuse to sell his kosher chickens and beef to Muslim or Christian customers, again, so long as those customers can pay and are abiding by the generally applicable rules of the shop.

The distinction may not be immediately obvious, but it’s important. The essence of civil rights is the principle that you can be denied service for your chosen behaviors, not for your identity.

I hope that helps…


  1. An excellent explanation with which I agree. But just for the sake of argument let me offer three wrinkles:

    1) The argument by the baker, wedding photographer, et al., is that being gay is a choice and represents a behavior and not an identity. They disagree with the core premise that gender identity and sexual orientation are inherent traits like race.

    2) Of course that leads to the question of why religion is protected or treated as an inherent trait. A person can change religion or choose to have no religion and religion is largely a set of rules governing behavior. But race, for example, us inherent and immutable. So why, under civil rights laws, are they treated the same?

    3) But if we do protect religion, why don’t we also protect other core elements of identity that are also not immutable, such as political affiliation?

    Food for thought.

  2. Michael poses some interesting questions, and I would observe in addition that your analysis doesn’t deal with the question of whether or not a business can be required to place on the sold item a particular “message” with which it takes issue. A First Amendment wrinkle that might be the subject of another posting.

  3. I thought that because business owners are licensed by the state to operate, as they do their business, they are acting implicitly as agents of the state, therefore they violate the First Amendment when they claim a religious exemption when they refuse to do business with someone.

  4. My simple explanation to your friend’s question is:

    The merchant who refuses to do business with a Neo Nazi is refusing to do business with a Hate Group.

    The second scenario involves a Hate Group refusing to do business with gays or Jews – people who happen to be fellow citizens that cause no harm to the members of said Hate Group or anyone else.

  5. The basic problem, as I see it, is that this government has taken a stand and passed laws “protecting” only one version of one religious source. Such as Pence’s RFRA protecting his personal pseudo-christian religious views while denying the fact and the rights of Blacks, Jews, Muslims, LGBTQs who also have religious rights, many of them Christians, which are being denied by the law supporting one faction of Christianity. Businesses such as Hobby Lobby, et al, deny access to birth control to their employees without specifying which of the countless versions of Christianity they support or knowing the religious beliefs of those employees. But accepting money from customers whose religion is not identified takes us straight to “follow the money”.

    Merchants denying goods and service based on their religious beliefs are only part of the racist and bigoted problematic actions; customers we have seen filmed in businesses who are ranting against other customers and/or employees working to serve them are verbally abusing their victims. Two years ago, my beautiful 15 year-old, biracial great-granddaughter worked at the Indianapolis Zoo as a photographer. As she was trained to do, she asked a middle-aged white woman if she could take her picture. The woman responded, “You could if you weren’t trying to be white.” My great-granddaughter was deeply hurt and began to cry. Another Zoo employee (white) asked was was wrong; she reported the ugly incident to their manager who told the woman she would have to leave because they do not allow abuse in any form of their trusted employees.

    Racism and bigotry unleashed by Trump, supported by the Republican Congress is denying the religious rights of the majority while supporting neo-Nazis, White Nationalists and the KKK in the name of religion. “Follow the money.”

  6. JoAnn, your description of the abusive act against your granddaughter almost made me cry. That people like the woman who verbally attacked your granddaughter are being empowered by the POTUS makes me sick to my stomach. I am so sorry.

  7. A friend of mine is a masseuse who refuses service to men who look threatening or dangerous, and she bases her rejection process on two things: the way they look and the way her psyche reacts to them (intuition). I understand how and why she needs to make those distinctions, but I cannot imagine how to write a law that permits or a law that denies her the right to make such distinctions.

  8. Keep in mind that the First Amendment gives us freedom of and from religion, thus religion is covered even if it is mutable.

  9. This discussion has really hit me in the gut. If I’m understanding what’s at stake, SCOTUS is actually going to rule on whether I’m gay by choice or by nature. Given the current conservative majority, I’m a bit worried.

  10. And the next SCOTUS law should be about medical marijuana laws in the states against those of us seeking employment. Federal law always trumps (I hate to use that word now) state’s rights so are my rights being discriminated against because I’m a patient that uses a Class 1 drug that my state has legalized? How does that work? All of these job descriptions say “must pass pre-employment drug screening” before hiring yet, I’m a patient! Won’t the HIPPA privacy laws apply? This is a worry on top of the fact that I’m being discriminated against because I haven’t worked in the past couple of years and I’m over 55 and omg…a woman too! sigh.

  11. Identity is out and behaviour is in, but what is identity and what is behavior? This will depend upon the nitpicking by the Supreme Court, hopefully based on scientific rather than preacher evidence. I hope the court will be aware of the coming out of the mayor of South Bend, who won reelection thereafter by a larger margin than before, and who in coming out remarked that his eyes were blue, too, which I thought was a perfect and definitive rejoinder.

  12. Almost the entire GOP worldview is about people protecting unearned entitlement.

    There is no doubt that my life has been made better by many things that I had nothing to do with. When and where I was born and what I was born with and into.

    I can’t complain about good fortune nor take credit for it. I was dealt a great hand. On the other hand my behavior has been completely under my control from day 1.

    I expect that law will hold me accountable for my behavior but not impair those who were dealt a lesser hand.

  13. simple = When you sell to the ‘Public’, your product – you are barred from discriminating who you sell to… PUBLIC means the populace.., of course unless YOU KNOW it is for some type of illegal activity. Or the person is under age, for your product. And of course if you don’t sell something – it doesn’t not set you off as discriminatory. Unless of course it should be a normal part of the repertoire and you only sell it to specific people!!! Or you demarcate yourself as an ethnic entity – a cultural entity – a religious entity – if you are selling to the PUBLIC you do not discriminate against others, unless you do so fraudulently. The person doesn’t have to sell to the public!… Let him make it for his church friends… at home.

  14. Larry’s comment really struck me. “A friend of mine is a masseuse who refuses service to men who look threatening or dangerous, and she bases her rejection process on two things: the way they look and the way her psyche reacts to them (intuition). I understand how and why she needs to make those distinctions, but I cannot imagine how to write a law that permits or a law that denies her the right to make such distinctions.”

    Law enforcement, at all levels, agrees that this is a huge hole in the law. The law seeks to protect us from harm. But in cases, where people fear that someone will harm them, but have no proof, the law says, that until that person actually does something to hurt or threaten you, the law can do little to protect you. Thus all those cases where the mother, or domestic partner says, after the beating, or killing, or rampage, “I tried to get help for years, I told the authorities that s/he was dangerous, but no one would help, because s/he hadn’t done anything yet.”

    Sheila Kennedy’s argument is clear and excellent. But being able to personally assess threat, and deny service, or demand police protection before service, is a problem in many occupations. My daughter in law is an ER nurse. Every so often, someone seeking care, suddenly attacks medical personnel in the ER. The ER always has some police protection, but someone has to assess threat and ask for a cop to be nearby. Guess how hard that is? And how often they guess wrong in a busy, overcrowded ER?

    It’s not so hard to say, you must sell your cakes to everyone who behaves in a civil fashion. But it’s tough to assess threat, based solely on appearance and intuition, and deny entrance to a bar, restaurant, theme park, gun show, school, protest, theater…. you get into profiling problems, personal prejudices, and the stakes are really high. The intersection of law (a broad brush that’s supposed to apply to everyone) and personal intuitive judgement, is tricky to navigate, unless you’re a Monday morning quarterback. That’s why cases end up in the Supreme Court.

  15. …thus the conservatives being RIGHT about the inherent hypocrisy of these decisions and laws. How can you treat religion like an identity and therefore protect those of any given religion against discrimination, but then refuse to allow them to make choices based on that religion? But the answer is not that they need protection from religious discrimination. The answer is that religion, like other behaviors businesses can and do use to discriminate, is a choice and should not be protected.

  16. Michael: your second point stands out:
    “A person can change religion or choose to have no religion and religion is largely a set of rules governing behavior. But race, for example, is inherent and immutable. So why, under civil rights laws, are they treated the same?”

  17. The counter argument is one of compelled speech. The baker sold cakes to everyone, including gays. He also sold cakes with inscriptions. If someone requests an inscription which violates his religious beliefs, is he required to write it? In your example, not a cake shaped like a swastika, but swastikas on the cake?

  18. The question is whether a baker writing “Congratulations, Adam and Steve,” on a cake is making the speech themselves, or merely facilitating the speech of the person purchasing the cake. Especially since wedding cakes are typically not signed — the bakers are rarely associated by name with the cakes, and could I suppose choose to forego the free advertising that having their name associated with the cake — I think that one could make the case that the cake is speech by the purchaser but not by the baker.

  19. To extend that, if I run a print shop, does anyone think that *I* am the one making the speech when I print a poster or a newsletter? Am I entitled to say that I don’t want to print a flyer for a meeting of, say, the local Young Republicans club? (Yes, I am purposefully choosing an innocuous example. If you’re going to claim that some writing by a printer or baker is speech and some is not speech, be prepared to explain which is which and how one can tell the difference, *withoutg making the distinction based on content. As the Church of Satan so elegantly shows again and again, there is no real way to draw a clear line between one set of firmly-held beliefs and another.)

  20. Aimee; if I understand Sheila’s explanation correctly, you would have to sell “Adam and Steve” the cake if it is already baked and for sale but would not have to add the decoration.

    As for a print shop; wouldn’t all work be special order (like decoration on the cake) and you would have the right to refuse any print order against your personal beliefs. You would have to sell any printed materials on display, even to those Young Republicans.

    One issue regarding Pence’s RFRA “religious protection” brought a question to my mind regarding the many areas in Indiana with no LGBTQ protection. In small towns, those known to be neo-Nazis, White Supremacists, KKK members, LGBTQs; can owners refuse to sell goods on display to them? Am I being foolish to ask of Pence’s RFRA law means business owners do not have to sell to those with opposition political, racial, religious beliefs or is it only LGBTQs they must sell ready made goods to? Was this clarified in the law; could that explain the strange collection of witnesses to Pence signing the law into effect?

  21. Excellent post. Saw many comments on a recent NY Times editorial that suggested businesses are required to sell everything under the sun, lest they be accused of discrimination. Tried to explain that was not true.

Comments are closed.